24 Gratt. 176 | Va. | 1874
This is an action of debt, brought by a sheriff against his deputy and the sureties of thej deputy, on the official bond of the deputy, to recover the of a judgment rendered] against the sheriff for the default of the deputy, in not duly accounting for money made by the latter under execution. The only question presented by the record is, whether the judgment rendered against the sheriff in such a case, the deputy having attended the trial and made full defence to the action, is binding and conclusive upon him and his sureties, in the action of the sheriff against them?
That it is binding and conclusive upon the deputy himself is certainly true, according to the best settled principles of the law. That it is at leást prima facie evidence against his sureties is also true. But whether it is conclusive evidence against them, is a question which we now have to solve.
Why is it not also conclusive against them? The sheriff is presumed to know nothing, and generally, in fact, does know nothing, of the acts and defaults of his deputy, in the execution of the office of such deputy, and the sureties of the deputy are equally ignorant of such aet3 and defaults. The only person who is presumed to know anything about them is the deputy himself, who, of course, knows all about them. He is primarily liable for them, and is bound to indemnify against all loss and damage arising from them, not only his own sureties, but the sheriff also. When, therefore, an action is brought against the sheriff to recover damages arising fronrany of these acts and defaults, the sheriff' has a right, and it is an act of prudent precaution on his part, to throw the burden and responsibility of defending the action upon the deputy, whose action it, in effect, is. It is due both to the deputy and his sureties that this should be done. There would be no reason and no pro
But the cases of Munford &c., v. Overseers of the Poor of Nottoway, 2 Rand. 313; and Jacobs v. Hill &c., 2 Leigh, 393, are relied on by the learned counsel for ■the plaintiffs in error, to show that the judgment was only prima facie and not conclusive evidence against the sureties. I will now enquire whether they or either of them can have any such effect.
And first, as to the case of Munford &c. v. Overseers of the Poor of Nottoway:
In that case it was held that a judgment against a principal in a bond is not conclusive evidence against his sureties. It was an action of debt brought in the name of the Governor of Virginia, for the benefit of the overseers of the poor of hfottoway county, against Mun-ford and others, on a bond given by said Munford for the faithful discharge of his duties as sheriff, with the other •defendants as his sureties. The only question in the ■case was, whether a judgment which had been recov
How the case we have under consideration falls under the latter class, and not under the general rule referred to by Judge Green ; and what he says tends, therefore, to sustain the view that the judgment in this case was conclusive against the sureties as well as against the deputy. Their bond is a bond of. indemnity within the meaning of the class of cases referred to, and the deputy was a person, in the meaning of those cases, who, although not in form a party to the action against the sheriff, was bound to assist in defence of the same and did so in fact.
In that case a motion was made against a'sheriff for deof his deputy, upon which the sheriff'with the assent of the deputy, but without the knowledge of his sureties, confesses judgment: Held, the record of this judgment is admissible evidence against the deputy’s sureties, upon a motion by the sheriff against the deputy and his sureties. There the proceeding was upon the official bond of a deputy sheriff which was to some extent an indemnifying bond, and somewhat though not precisely like the bond in this case. It was not necessary to decide, and was not decided in that case, that the judgment against the sheriff was not conclusive evidence against the sureties of the deputy, but it was sufficient to decide, as it was decided, that the said judgment was prima facie evidence against them. The remark of Judge Garr in delivering the opinion of the court, that “ this, we think was ample evidence of the fact, and charged his sureties, unless disproved by them,” was extra-judicial as to the concluding words, “ unless disproved by them,” and seems in that respect to have been made without adverting to the distinction noticed by Judge Green, as before mentioned.. 2 Rand. 318. Judge Carr treated the case before him as a case falling under the general' rule which governs the ease of principal and surety, instead of a case falling under the exceptions, which include cases of contracts of indemnity and the like. Whether it properly fell under the one or the other, the result of the case would be precisely the same.
In that case the judgment against the sheriff' was by confession, though with the assent of the deputy, and it was therefore contended by the sureties of the deputy, that it did not bind them; there being, as they said, no other evidence of the deputy’s default. But the court said the redbrd showed that the motion against the
Besides the two cases relied on by the counsel for the plaintiffs in error, my attention has been called to the case of Cox and als v. Thomas’ adm’x, 9 Gratt. 323, as also tending to show that the judgment against the sheriff is only prima facie, and not conclusive, evidence against the sureties of the deputy in this case. But it is enough to say, that it does not appear that the deputy was present on the trial of the motion against the sheriff in that case, or had any notice of such trial or motion, and yet the court considered the judgment recovered against the sheriff, showing that it was for the default of the deputy, suprima facie evidence of such default, or the trial of a motion by the sheriff against the deputy and his sureties, to recover the amount of such judgment. Had the deputy been notified of the motion against the sheriff, and attended and made the best defence he could upon the trial, the judgment rendered
Since writing the foregoing opinion my attention has been called by my brother Staples,to a great many cases in the reports ot some of our sister States, and especially New York, which seem to have an important bearing upon this case, and some of which he supposed might be in conflict with the views expressed in the said opinion. I have examined all those cases, I believe, and only one or two of them, if any, seem to be in conflict with those views. While most of them lay down or affirm the general principle that a judgment is conclusive only against, parties or privies, they admit that there are exceptions to the general rule; and the question in each case is, whether it falls within the general rule or one of the exceptions to it. There are two propositions which none of these cases seem to deny. And they are, 1st, that where one party is bound to indemnify another against a liability, the latter may notify the former to defend a suit brought to enforce such liability, and the judgmeut recovered in such suit will be conclusive evidence in a suit by the latter against the former to enforce such indemnity. And, 2ndly, when by the terms of the contract of indemnity, express or implied, the indemnifying party and his sureties can be considered as contracting for the payment of any judgment which may Joe recovered against the party indemnified, on account of an act or default to which the contract of indemnity applies, then the indemnifying party and-his
The fact is that the relation which has always subsisted in this State, from the eai’liest times, between the sheriff and his deputy, naturally gave rise to such a rule, and made it proper and necessary. Formerly, we know, that the sheriff, rarely if ever, performed any of the duties of the office; which was the only reward conferred upon the justices for their public ser
I am, therefore, for affirming the judgment of the Circuit court.
Christian, Anderson and Staples, Jr., concurred in the opinion of Moncure P.
Judgment affirmed.